Bruette v. Jewell
| Decision Date | 24 August 2015 |
| Docket Number | Case No. 14-CV-876 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | FELIX J. BRUETTE, JR., Plaintiff, v. SALLY JEWELL, Secretary of the Interior, Defendant, VALERIE J. BRUETTE, IVAN D. BRUETTE, and ARTHUR J. BRUETTE, Movants. |
DECISION AND ORDER GRANTING MOTION TO DISMISS
Plaintiff Felix J. Bruette, Jr., brought this pro se civil action against Sally Jewell, the Secretary of the United States Department of Interior (DOI). Bruette states that he is "the great great Grandson and direct lineal descendant of Stephen Gardner," who was "a signatory under Article V of the Treaty of February 5th, 1856 and declared to be an 'actual' member of the Stockbridge and Munsee Tribe by the United States Congress on March 3rd, 1893." (ECF No. 1 at 3.) As a linear descendent of Stephen Gardner, Bruette claims he is entitled to certain rights and privileges, including a pro rata share of tribal funds and the right to occupy tribal lands. Bruette brought this action in an attempt to vindicate those rights. For the reasons set forth below, however, I conclude that this court lacks jurisdiction over his claims and that his action must be dismissed.
Some understanding of the history of the Stockbridge and Munsee Tribe in Wisconsin is necessary to understand Bruette's claim. Fortunately, that history has been recounted in two previous decisions concerning a dispute with the State of Wisconsin over the boundaries of the Tribe's reservation in western Shawano County. See Wisconsin v. Stockbridge-Munsee Community, 366 F.Supp.2d 698 (E.D. Wis. 2004), aff'd, 554 F.3d 657 (7th Cir. 2009). A long and detailed version of that history appears in Magistrate Judge Patricia Gorence's decision granting the State's motion for summary judgment, and a more abridged version appears in the Seventh Circuit's decision affirming it. An abridged version of the abridged version is sufficient for our purposes here.
The Stockbridge-Munsee Indians (the Tribe) are comprised of descendants of the Mohican Tribe who migrated westward and eventually arrived in Wisconsin in the 1820s. In 1856, the United States entered into a treaty and created a reservation for the Tribe consisting of two townships (Bartelme and Red Springs) in Shawano County, Wisconsin, some 40 miles northwest of Green Bay. Treaty with the Stockbridge and Munsees, Feb. 5, 1856, 11 Stat. 679. In 1871 Congress passed an act providing for the public sale of most of the land (with the proceeds to be distributed to or held in trust for tribal members), allotment of the remaining land to tribal members who elected to remain, and a new enrollment of the Tribe. Act of Feb. 6, 1871, ch. 38, 16 Stat. 404. Those entrusted with creating the tribal roll, however, excluded more than half the Tribe, including Bruette's ancestor. In 1893, in response to reports that the exclusion of many of the tribal members was obtained by fraud, Congress passed another act in an attempt to restore them to tribal membership. Act of Mar. 3, 1893, ch. 219, 27 Stat. 744. The 1893 Act required the Secretary of Interior to create a new roll of the Tribe to include all those who were or became members of the Tribe at the time of the Treatyof 1856 and their descendants who have not separated from the Tribe. The Act also provided that all members "who entered into possession of lands under the allotments of 1856 and 1871, and who by themselves or their lawful heirs have resided on said lands continuously since, are hereby declared to be owners of such lands in fee simple, in severalty, and the Government shall issue patents to them therefor." Id. In the event of a conflict between the allotments under the 1871 act and the allotments of 1856, the act provided that the latter shall prevail. Id. at 745.
It soon became apparent, however, that there would not be enough land for those who had claims under the 1893 Act. This is not surprising since the addition of those previously excluded increased tribal membership, while at the same time three-quarters of the Tribe's land had been sold in 1871. Although the enrollment was apparently completed, the allotment process proved difficult, and was ultimately suspended pursuant to a Senate Resolution. See 1895 Annual Report of the Commissioner of Indian Affairs, ECF No. 12-25.
In 1900, with the DOI's approval, the Tribe presented Congress with a proposal to settle all of the United States' obligations to the Tribe under the 1856 treaty, any act of Congress, or otherwise. The plan called for allotments of the unsold portion of the reservation and of additional land to be purchased by the United States, or cash in lieu of land. Unlike under previous laws, the proposed allotments would be alienable. Congress failed to act on the proposal for several years due to concern about how to fund the measure. See Stockbridge-Munsee Community, 554 F.3d at 661. Congress ultimately enacted the plan into law in 1906, with funding to come from the Tribe's treasury. See Act of June 21, 1906, ch. 3504, 34 Stat. 325, 382-83. Following these allotments, until the 1930s, the reservation was essentially treated as nonexistent. But after the enactment of the Indian Reorganization Act of 1934, the Stockbridge-Munsee people organized the "Stockbridge-Munsee Community," a federally recognized Indian tribe residing on what remains of its 1856 reservation in Shawano County, where it is located today.
It is the provisions of the 1893 Act that Bruette seeks to enforce. Bruette alleges that neither he nor his ancestors have separated from the Treaty of 1856, and claims that he still resides within the original boundaries of that treaty, as did his father, grandmother, great grandfather and Stephen Gardner. (ECF No. 1 at 3.) He then asserts the following three claims:
(Id.) In a space for listing the "Relief You Request," Bruette wrote: (Id. at 4.)
Secretary Jewell responded to the complaint with a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, alternatively, for summary judgment. The Secretary argued that the case was moot because the roll required by the 1893 had in fact been taken. Although the Secretary acknowledged that the Senate did temporarily suspend enrollment and allotment activities under the 1893 Act with the 1895 resolution, the suspension was lifted on February 12, 1895, at which time the Commissioner of Indian Affairs proceeded to issue land patents and per capita payments as provided for under the1893 law. In support of this contention, the Secretary submitted a certified reproduction of a National Archive record entitled "Census of the Stockbridge and Munsee Indians, entitled to enrollment under the Census of 1856, taken by C. C. Painter, U.S. Indian Agent, under the act of March 3, 1893, as revised by the Commissioner of Indian Affairs." (ECF No. 10-1.) The census includes a list (consisting of odd-numbered pages from 3 to 47) of tribal members, including the descendants of Stephen Gardner. (Id. at 9.) The Secretary also submitted in support of her motion a copy of a land patent issued by President James Buchanan in 1860 granting to "Stephen Gardner and to his heirs and assigns forever" sixty acres of land from the Township on the east side of Lake Winnebago that had been granted to the Stockbridge by the Treaty of 1831 with the Menominee Tribe of Indians. (ECF No. 10-2.) Based on these documents, the Secretary argued that the relief sought by Bruette had already been granted and that the case should be dismissed as moot because there is no justiciable controversy over which this court can exercise jurisdiction. Alternatively, the Secretary argued that the action was barred by the six-year statute of limitations for claims against the Government under 28 U.S.C. § 2401(a).
In response to the motion, Bruette argued that the Secretary was interpreting his claim too narrowly by focusing on the taking of the roll alone. Bruette wrote: (ECF No. 12 at 1) (citations omitted). Bruette proceeded to dispute the Secretary's interpretation of the meaning of the 19th century documents the Secretary introduced, including the land patent apparently issued to his great grandfather. Bruette also countered with twenty-six exhibits of his own. Unable to ascertain Bruette's claim, the court scheduled the matterfor a hearing.
At the outset of the hearing, counsel for the Secretary conceded that the Secretary was abandoning any argument based on the land patent issued to Stephen Garder by President Buchanan in 1860, since it was for a parcel of land located in Calumet County pursuant to an earlier treaty. The Secretary maintained her position that the roll ordered under the 1893 act had been completed. (See Tr. at 3-4, ECF No. 19.)
Bruette, now joined by his brother and sister who seek to join him in his action against the Secretary, offered a lengthy...
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